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TMI Blog2011 (6) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... e of records. not all grounds in the appeal memoranda were argued during personal hearing. Whatever grounds argued before the Tribunal by the learned Advocate have been considered and not found acceptable. This application in my considered opinion, stands filed merely because the appeal has been decided against the applicant. There are no errors on the face of the records warranting recall of the order and for rehearing the appeal. application is rejected X X X X Extracts X X X X X X X X Extracts X X X X ..... ceuticals Ltd. was not cited for the reason given in para 4.3 of the final order but the same was cited to support the 3 certificates given at the Sr. Nos. 2, 3 and 4 under Heading 'C' above. (2) The finding in the last 2 sentences of para 6.1 is factually wrong in view of the evidences also placed before the Tribunal and as mentioned at Sr. Nos. 1, 2, 3, 4 & 5 under Hading 'C' above and also in view of the facts appearing at Sr. Nos. 1, 2, 3 & 6 under Heading 'B' above. (3) The finding in the last sentence of para 6.2 is factually wrong because the adjudicating authority never invoked Section 123 of the CA, 1962 in his order. (4) No allegation was in the show cause notice or in the OIO against the applicant. (5) The findings in para 6.3 is also wrong because the retraction was sent by Sh. Faiyaz Ahmed within two hours and not within two days. Another finding that the retraction should have been addressed to the officer to whom the statement was given by Sh. Faiyaz Ahmed, is absolutely a new finding which never found any place in the 2 orders given by the two lower authorities. (6) The finding in para 7, are also factually wrong inasmuch as that the 4 biscuits were not recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of being heard." 3.1 An application was originally filed on 8-6-10 and the same was admittedly a wrong application and a correct application was filed on 14-6-10. There are wide variations in the contents and tenor of the applications received on 8-6-10 and 14-6-10. Further these applications have been filed by Shri Zaki Ishrati. He claims that several points argued by the learned Advocate before the Tribunal were not considered. How he came to know that certain submissions argued at the time of personal hearing by his advocate were not considered by the Tribunal has not been revealed. 3.2 Admittedly, a wrong application was filed on 8-6-10 and revised petition was filed on 14-6-10. As already noted, in the application received on 8-6-10, under para 'D' only five issues were listed as having not been considered by the Tribunal, whereas in the revised application on 14-6-10 as many as 16 issues have been listed as having not been considered by the Tribunal. The basis for such enlargement of grounds has not been furnished. Further, in the application received on 8-6-10 certain observations have been wrongly attributed to the Tribunal and the same stands deleted in the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the grass of south lawn behind the main portion were gold of foreign origin and whether there is evidence that the applicants procured them licitly. It is on record that Shri Zaki Ishrati has denied the knowledge and concern about 16 pes of gold seized from the garden in his statement dated 1-12-94. The fact that he claimed ownership belatedly before the adjudicating authority has been noted. The evidence produced in support of licit procurement of 4 biscuits has also been discussed and found not acceptable. 3.7 The issue involved was whether the gold having certain foreign markings recovered under dubious circumstances and seized invoking Section 123 of Customs Act are to be treated as of foreign origin and whether the applicants have discharged the burden cast on them. The applicant has been held to have not satisfactorily explained the licit nature of acquisition and possession of the gold with foreign markings. The applicant, instead of producing evidence to substantiate licit nature of acquisition and possession was trying to picks holes on issues like the manner of investigation, validity of retractions, the competency of adjudicating authority, non-consideration o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso appears that the party No. 1 & 2 have contravened the provisions of Section 11-2(c) of Imports & Exports (Control) Act, 1947 under which by virtue of Notfn. No. 17/55 dated 7-12-55 as they appear to have acquired the possession smuggled gold biscuits and they were concerned in carrying, removing, depositing, keeping, concealing & dealing of smuggled gold biscuit which they knew or had reasons to believe that the same were liable for confiscation." 4.3 A submission has been made that the Company M/s. Zarafshan Chemicals Pvt. Ltd., from whose premises the gold was seized, should have been given an opportunity of being heard. This submission, it is claimed, has not been dealt with. No show cause notice has been issued to M/s. Zarafshan Chemicals Pvt. Ltd. There is no evidence that M/s. Zarafshan Chemicals Pvt. Ltd. has participated in the proceedings before the original authority as a claimant of the gold. Under these circumstances, the question of granting any opportunity of hearing to the said company that too based on request by other individual does not arise. Specifically not dealing with such a submission cannot constitute any error apparent on records. 4.4 A sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aims which arise out of defence submission and counter to defence submission cannot be treated as going beyond the show cause notice. Basically the show cause notice alleged that the applicants was in possession of foreign marked gold and they were not having proof of licit possession and therefore, goods are liable for confiscation and penalties are imposable. There is no decision beyond the scope of the notice either by the authorities below or by the Tribunal. 4.6 A submission has been made that the authority who adjudicated is different from the authority to whom the show cause notice directed to furnish reply. It is to be noted that the seizure was effected on 10-8-1994 and first adjudication was done on 10-4-96 by the Additional Commissioner and matter stands remanded to the original authority by the Tribunal vide its order dated 28-10-98 which has not been challenged by the appellants. This issue also appears to have not been raised before the Tribunal in the first round of litigation. Under these circumstances, the claim that show cause notice was made answerable to Dy. Commissioner but was adjudicated by the Additional Commissioner could not be appreciated. They have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... z Ahmed but based on entire facts and circumstances into account. The retraction of Shri Faiyaz Ahmed has been dealt with in para 6.3. He has given statements on 10-8-94 which was reiterated on 11-8-94. The telegram said to have been sent to Collector was not found as duly noted by the original authority. The retraction was sent by an affidavit dated 12-8-94 which is obviously after two days from the date of statement. There is no error in the finding. It has also been recorded that Shri Faiyaz Ahmed was arrested and produced before the Magistrate and that he has not complained to the Magistrate about the alleged involuntary nature of the statement. 4.10 A submission has been made that the gold can be imported under OGL and therefore, proceedings initiated were not legal. It is not the case of the applicant that they have imported the gold themselves. The claim of the applicant that they received gold from Shri Khetri Ram Deshraj has been dealt with in para 7 of the order in detail. In the said paragraph the contradiction in the claims of Shri Zaki Ishrati has been taken note of. 4.11 Submissions have also been made that several documents such as bail application, bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been specifically discussed in the order have been considered by the Tribunal. It also overlooks that whatever submissions not specifically discussed did not find favour with the Tribunal. The non-acceptance of the submissions/view points urged on behalf of either party cannot be treated as errors or mistakes that too apparent on face of records. (e) Certain grounds on which the application has been made is also on erroneous appreciation of facts for example, the ground that the original authority did not invoke Section 123 of the Customs Act in his order, which is clearly erroneous. Similarly, the ground that there is no allegation against the applicant in the show cause notice is also clearly erroneous. (f) The fact remains that not all grounds in the appeal memoranda were argued during personal hearing. Whatever grounds argued before the Tribunal by the learned Advocate have been considered and not found acceptable. This application in my considered opinion, stands filed merely because the appeal has been decided against the applicant. (g) There are no errors on the face of the records warranting recall of the order and for rehearing the appeal. 8. In view of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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